MALAYSIAN JUDICIARY WANTS COMPLETE INDEPENDENCE FROM THE EXECUTIVE

JUDICIARY’S CALL FOR COMPLETE
INDEPENDENCE FROM THE EXECUTIVE LONG OVERDUE

The Malaysian Bar fully supports Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim’s recent statement that the judiciary must be completely independent of the executive, and his call for Sessions Court judges and magistrates will come directly under the Chief Justice. This call which also included a doing away of the Judicial and Legal Services Commission was reported in all mainstream media. (see “Break for justice” (NST 22/8/2006),” CJ: Revamp needed for a fully independent judiciary” (Sun), “Independent judiciary proposed” (Star).)

Rather that reporting what was reported, I merely quote extracts from the NST report, that will highlight some of the points that were made by the CJ in the said report :-

“The judiciary is seeking complete independence from the executive.

It served notice yesterday of its intention to "influence" the Government to abolish the Legal and Judicial Services so that Sessions Court judges and magistrates will come directly under the Chief Justice.

Being under the Legal and Judicial Services, Sessions Court judges and magistrates are considered civil servants.

Although they are answerable to the Chief Justice once appointed as Sessions Court judges or magistrates, they can be transferred out of the judiciary or promoted anytime — even in the middle of a trial — by the Federal Court Registrar and the Attorney-General’s Chambers.

And as long as Sessions Court judges and magistrates were considered civil servants, Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim said, they could not be fully independent. A clear line must be drawn to indicate they were not part of the Government.

"Because for as long as you are looked upon as government servants, then you cannot be independent.

"It is part of democratic principles that we must have an independent judiciary. Without that, there will not be the rule of law," he added.”

Bar Council supports the CJ’s call
In a related report entitled, “Legal experts welcome proposal” (NST), Bar Council chairman Yeo Yang Poh said the Bar Council had long held the position that magistrates and the Sessions Court judges should be considered part of the judiciary.
Malaysian Bar has been calling for this since 2000
At the 54th AGM of the Malaysian Bar held at the Renaissance Hotel, Kuala Lumpur - Saturday, 25 March 2000, the following resolution was passed unanimously, and the resolution is laid out below for members of the Bar to appreciate and also realize that our calls do gain support and do bear fruit even if it may be a bit long in coming.

“Whereas:-

1. Today, for more than 90% of the criminal cases, the Magistrate’s Court and the Sessions Court are the courts of first instance. With regard to civil and commercial matters, the lower courts have the jurisdiction to hear disputes where the sum disputed or the value of the subject matter is not exceeding RM250,000.00.

2. The mechanisms provided in the Federal Constitution to ensure the independence of the Judiciary (i.e. judges of the High Court, Court of Appeal and Federal Court, the Chief Justice, and President of the Court of Appeal and the Chief Judges of the High Courts) does not extend to Magistrates and Sessions Court Judges.

3. For example, Magistrates are being remunerated at the scale similar to those of other civil servants with equal education qualification and length of service.

4. All members of the Judicial Services, which includes Magistrates and Sessions Court Judges, and the Legal Services come under the jurisdiction of the Judicial and Legal Service Commission (ref. Art. 138 Federal Constitution), whereby the Attorney General is a member of the said Commission. Thus, the “prosecutors” and “judges”, especially when it comes to criminal matters, come under the jurisdiction of the same Commission and this does not augur well, for “justice must not only be done but also be seen to be done”.

5. Some Magistrates have been appointed as Deputy Public Prosecutors (DPP), and some DPPs have also been appointed as Sessions Court Judges.

6. Many Magistrates appointed are fresh law graduates. The only pre-requisite for the appointment as a Magistrate or a Sessions Court Judge is that he/she must be a member of the Judicial and Legal Services (see sec. 60 & 78A of the Subordinate Courts Act 1948). There is no other qualifications requirements akin to those provided for in Article 123 of the Federal Constitution when it comes to the appointment of the judiciary.

7. As officers of the Court, lawyers have a duty to be proactive in making constructive suggestions for the improvement of the administration of justice in Malaysia.

It is hereby resolved:-
A. That the Malaysian Bar expresses concern about the lack of mechanisms and safeguards to ensure the independence of Magistrates and Sessions Court Judges in the lower courts.
B. That the Bar Council be proactive and work towards bringing about reforms in the administration of justice in the lower courts in Malaysia, having special regard to the :-
(a) qualification of Magistrates and Sessions Court Judges;
(b) introduction of Mechanisms or Safeguards to ensure greater independence of Magistrates, Sessions Court Judges and other judicial officers; and
(c) the necessity of separating the Judicial Services and the Legal Services.

Proposer: Mr Charles Hector, Seconders: En. Amin Hafiz
Ms Mary Manickam (This Motion was unanimously carried)”

Just bringing the Session Court Judges and Magistrates under the Judiciary is not sufficient…

It is important that it also be extended to the Senior Assistant Registrars(SARs), Deputy Registrars and the Registrars as well. There is also a need to put into place mechanisms and safeguards; like that we now have for Judges, for these judicial officers.

There is also a need to look into the selection process of judicial officers. It is absurd today that we have some young graduate sitting as SARs of the High Court making decisions that may lead to judgment for the Plaintiff or the striking out of the suit for some reason or another. One wonders why we have things like monetary jurisdictions and other jurisdictions for Magistrate Courts, Session Courts and the High Courts at all.

There was thinking at one time that we should not have a person of less than 5 years standing sitting as a Magistrate or in any other judicial position. This would be a good thing, realizing that in Malaysia, we still treat our university students as “school students” who are expected to just learn and not get involved in affairs of the “rakyat”, politics or the State. University students are not even allowed to “sympathize”, let alone mingle with politicians (especially those not in the ruling coalition) and/or even the trade unionists.

Hence, it would be best that some years of working experience outside the artificially controlled environment created by the Universities and Universities Colleges Act (UUCA) and the other Acts that covers private colleges would be good.

There must be no discrimination based on years of standing with regard to lawyers, but for persons who shall be sitting in a judicial capacity, there must be a certain number of working years experience. We need possibly some sort of judicial appointment commission who will be looking also at the appointment of judicial officers.

If we still do want to get fresh graduates appointed as judicial officers, then maybe they should be appointed as SARs and DRs but their role must be reviewed. Maybe SARs and DRs must just be there to assist Judges, in doing the necessary research work and not sitting and hearing interlocutory applications save for those that will not have the effect of giving final judgment and/or dismissing a suit.

Court Police

There may be a need to create a new body of “court police”, who is separate and independent of our normal police. This “court police” would be under the judiciary and should be wearing a different kind of uniform. This would be in the public interest.

Now, a person is arrested by the police, interrogated and sometimes “tortured” by the police. He is then brought before a Magistrate within 24 hours, and standing round and beside the Magistrate the suspect sees the same police (the same uniform), and naturally, he is scared to even complain about any failings and/or “torture” by the police during his arrest and detention to the Magistrate.

In court, after he is charged, every time he comes day to court in a criminal case, he sees the same police (same uniform) sitting and recording in court, leading him in and out of his court lock-up, and that too may put “fear” into some accused persons from disclosing what some other police persons had done to him which may be relevant to ensure that justice is done. There is thus a need for a court police.

Likewise, we must also be thinking of getting all court staffs under the judiciary, and separate from the executive.

All these and other things are important in ensuring not just an independent judiciary – but also a public perception of an independent judiciary.


Charles Hector
23rd August 2006
Petaling Jaya